An example of this is in the case Factortane, where Spanish fishermen were fishing in British waters. British fishermen were unhappy with this, and complained to parliament. In response Parliament introduced the Merchant shipping act 1998, this imposed conditions on the ability of the Spanish fleet to fish on UK waters. A certain percentage of the crew had to be British, along with the boat having to be registered as a company in the UK. This contradicted the treaty of Rome, which allowed the freedom of movement of persons and goods from one member state to another. Spain then brought this to the House of Lords, who were unsure what to do as both laws contradicted each other. They referred it the ECJ, who said that where there is any conflict between EU law and national law, EU law takes precedent.
There are two main functions of the ECJ. The first being that it hears cases which decide if member states do not comply with the obligations under the treaty. An example of this is in the case of Tachographs in 1979, this is when the United Kingdom was told it had to use council regulation on the use of mechanical recording equipment (Tachographs) in road vehicles used for the carriage of goods. The other key function is preliminary rulings; this is when the court hears rulings from national courts, in order for preliminary rulings of points of European Law. This is of great importance, as all decisions made are naturally binding on all courts in member states. To request a preliminary ruling Article 234 under the treaty of Rome is required. And states the following “The court if Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of treaties; (b) the validity and interpretation of acts of the institutions of the union and finally (c) the interpretation of the statutes of bodies established by an act of the council, where those statutes so provide”. The ECJ only makes a preliminary ruling on the point of law, so they do not actually decide the case.
The approach of Discretionary Referral was first set out in the case of Bulmer v Bollinger, and outlined when it should be used. Firstly the English court can still have the discretion to refer or not, unnecessary to refer a question which has already been decided by ECJ, in a past case, point of law must be used to come to a conclusion at the end of a case, Acte Clair doctrine must be used and finally the court must consider all circumstances in the case.
The court of First Instance first established in 1988 is present to help the ECJ with its number of cases. It hears staff cases, so disagreements between European institutions and their workers. Complex economic cases in competition law, which is under the Coal and Steel community treaty. It has a total of 12 judges, of which there can be panels of six, four or three judges.
There is 27 of the EU’s national legal systems are represented. The Court is assisted by eight ‘advocates-general’ whose role is to present reasoned opinions on the cases brought before the Court. They must do so publicly and impartially. The Court may meet in plenary session, or create chambers of three or five judges. Only a single judgement is delivered in each case, signed by all judges, without any differing opinions. Therefore, all decisions are both unanimous and anonymous, preventing any attempt to attribute the result to the nationality of the judges deciding
A newly introduced structure to the European courts by the treaty of Nice is the creation of specialised judicial panels. Allowing for the creation of specialised tribunal’s means it is now possible, following a practice in the Member States, that a specialised EU tribunal could be created to deal with disputes in the field of employment and industrial relations.
